State v. Hargrave

631 So. 2d 1208, 1994 WL 17980
CourtLouisiana Court of Appeal
DecidedJanuary 25, 1994
Docket93-KA-628
StatusPublished
Cited by4 cases

This text of 631 So. 2d 1208 (State v. Hargrave) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hargrave, 631 So. 2d 1208, 1994 WL 17980 (La. Ct. App. 1994).

Opinion

631 So.2d 1208 (1994)

STATE of Louisiana
v.
David G. HARGRAVE.

No. 93-KA-628.

Court of Appeal of Louisiana, Fifth Circuit.

January 25, 1994.

*1209 Carol Runnels Welch, LaPlace, for plaintiff/appellee.

Robert M. Becnel, Becnel, Landry & Becnel, LaPlace, for defendant/appellant.

Before BOWES, GRISBAUM and GOTHARD, JJ.

GOTHARD, Judge.

Defendant, David Hargrave, appeals a trial court judgment denying his motion to suppress evidence in a criminal proceeding against him. For the following reasons, we affirm the conviction, vacate the sentence and remand.

On November 10, 1992, the state filed a bill of information in the 40th Judicial District Court charging defendant, David Hargrave, with cultivation of marijuana, in violation of LSA-R.S. 40:966A(1). At the February 16, 1993 arraignment, defendant pled not guilty.

On April 21, 1993, the trial court conducted a preliminary hearing to determine probable cause, as well as a hearing on defendant's motion to suppress. After taking the matter under advisement, on May 7, 1993, the trial court rendered judgment, finding probable cause to hold defendant for trial. The trial court also denied defendant's motion to suppress the marijuana plants which were recovered from a greenhouse in defendant's backyard, *1210 but granted the motion to suppress the marijuana found in a clear plastic bag in defendant's personal desk drawer in his home.

On June 1, 1993, defendant withdrew his former plea of not guilty, and after filling out a waiver of rights form, pled guilty to the charged offense.[1] In accordance with a plea bargain agreement, the trial judge sentenced defendant to five years at hard labor. The trial judge suspended the sentence on the condition that defendant serve five years active probation. As further conditions, defendant was ordered to pay a $25.00 monthly probation fee, a $1,000.00 fine, and $179.00 in court costs. The imposition of the sentence was suspended pending this appeal.

At the suppression hearing, Detective Sergeant Vernon Bailey of the St. John Parish Sheriff's Office testified that on December 6th and 7th, 1990, he received three anonymous phone calls advising him that defendant was growing marijuana plants in the greenhouse behind his residence. As a result of the calls, Detective Bailey arranged a surveillance of defendant's residence. Deputy Vincent Stuart of the St. John Parish Sheriff's Office, and Brian Coon, a national guardsman working with the Sheriff's Office, participated in the surveillance. They observed defendant go into his residence, stay there about fifteen to twenty minutes, and then leave.

When Detective Bailey arrived at the residence, he knocked on the door and was greeted by seventeen year old Christopher Sanchez. Bailey learned that Sanchez was the son of Josephine Hargrave, defendant's wife, and that he lived at that residence. Bailey advised Sanchez of the phone calls reporting marijuana cultivation and asked his permission to go into the backyard to the greenhouse to see if any of the plants existed. Sanchez verbally gave Bailey permission to go into the backyard. In addition, he gave Bailey written consent to enter the backyard and search the greenhouse.

After execution of the consent form, Bailey went to the greenhouse and found fortythree marijuana plants, each of them approximately three to four feet tall. After finding the plants in the greenhouse, Bailey searched the defendant's residence and found a small plastic bag containing marijuana in defendant's desk drawer. The plants and plastic bag were seized and taken to the laboratory for analysis. They were positively identified as marijuana. Later that evening, defendant surrendered to police. After being advised of his constitutional rights, defendant gave a written statement, admitting sole responsibility for cultivating the marijuana. Defendant was thereafter placed under arrest.

After listening to the testimony at the suppression hearing, the trial judge took the matter under advisement. He thereafter rendered judgment denying the suppression of the plants seized from the backyard greenhouse, but granting it in regards to the marijuana seized from defendant's personal desk drawer. Defendant appeals, contending that the state has failed to carry its burden of proving that the search was voluntarily consented to by a person with common authority over the thing searched.

The Fourth Amendment to the United States Constitution and Article 1, Section 5 of the Louisiana Constitution protects individuals against unreasonable searches and seizures. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well delineated exceptions. One such exception is a search conducted pursuant to consent. State v. Owen, 453 So.2d 1202 (La. 1984); State v. Watson, 477 So.2d 788 (La. App. 5th Cir.1985).

When the state seeks to rely upon consent to justify a warrantless search, it must demonstrate that the consent was freely and voluntarily given without coercion. State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985), rehg. denied, 474 U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d 567 (1985). The voluntariness of an individual's consent to search is a question of fact to be determined *1211 by the trial judge under the facts and circumstances surrounding each case and the trial court's determinations as to the credibility of witnesses is to be accorded great weight on appeal. State v. Wilson, supra; State v. Cover, 450 So.2d 741 (La.App. 5th Cir.1984), writ denied, 456 So.2d 166 (La. 1984). In the present case, Detective Bailey testified that he advised Christopher Sanchez that the police either have to present a search warrant or have a voluntary consent to search by a resident. Bailey further advised Sanchez that if he did not want to voluntarily consent to the search, the officers would have to provide him with a search warrant. Thereafter, Sanchez gave Bailey both verbal and written consent to search the backyard greenhouse. In rendering judgment, the trial judge determined that Sanchez freely and voluntarily consented to the search. After a thorough review of the record, we see no error in this determination. Thus, the next inquiry is whether Sanchez had authority to consent to such a search.

In State v. Watson, supra, at pp. 791-792, this court stated the following regarding consent searches:

The consent to search is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Bodley, 394 So.2d 584 (La.1981); State v. Cover, 450 So.2d 741 (La.App. 5th Cir.1984). This common authority stems not so much from a property interest,
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Bluebook (online)
631 So. 2d 1208, 1994 WL 17980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hargrave-lactapp-1994.